IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON STATE OF TENNESSEE v. KENNY KIMBLE Direct Appeal from the Criminal Court for Shelby County No. 10-04024 Paula Skahan, Judge

No. W2012-00407-CCA-R3-CD - Filed July 22, 2013

JUDGE JERRY L. SMITH, Concurring in Results.

CONCURRING OPINION I am writing separately to express my disagreement with the majority opinion's assertion that a trial judge's ruling with regard to hearsay is subject to review under an abuse of discretion standard. I am persuaded that the analysis of State v. Gilley, 297 S.W.3d 739 (Tenn. Crim. App. 2008), perm. app. denied, (Tenn. Feb. 17, 2009), is the appropriate method for reviewing issues involving hearsay. Although this analysis has been questioned by our supreme court in the Pylant and Franklin decisions cited by the majority, Gilley has never been overruled by that court. Until such time as our supreme court sees fit to overrule Gilley, I feel compelled to follow it. See Tenn. Sup. Ct. R. 4(G)(2) (requiring that published appellate opinions be considered controlling authority unless reversed or modified by a court of competent jurisdiction).

In the instant case, in my opinion, the victim's statement to his mother concerning the soiled shirt clearly falls under Tennessee Rule of Evidence 803(2) and is admissible as an excited utterance exception to the rule against the admission of hearsay. Thus, I am able to concur with the results reached by the majority with respect to this issue. In all other respects I concur fully with the judgment of the Court.

JERRY L. SMITH, JUDGE